Category: E-Verify

The U.S. Citizenship and Immigration Services (USCIS) recently announced an ehnacment to the E-Verify program to combat identity fraud with respect to social security numbers. Basically, USCIS will lock social security numbers that appear to have been fraudulently used. If an employee provides a locked social security number while completing the I-9 form, E-Verify will generate a Tentative Nonconfirmation (TNC), which then will require the employee to contest the TNC at a local Social Security Administration field office.

Prior to this enhancement, USCIS believed it was more likely that a stolen social security number would not raise any red flags or result in a TNC, if the employee also provided the name and date of birth of the individual to whom the social security number belonged. Thus, for example, if I stole the name, date of birth, and social security number of John Smith, I may get through the E-Verify process with no problem, because there was no mechanism to catch that the social security number had been stolen.

Combating identify fraud is something everyone can support, but here are the bad news for E-Verify employers. Multiple TNCs may result in USCIS sharing such information with ICE, which in turn may result in an audit of the employers I-9s and other work authorization processes.

So, here is the key to the lock out. Employers must focus on I-9 compliance first and foremost. Specifically, employers should make an honest effort to examine whether the original documents presented by the employee appear to be genuine and belong to the employee. If the employee chooses to present a social security card as a List B document, pay close attention and make sure it appears to be genuine. (In conducting audits, I have seen many fake social security cards that even my 10 year old could have spotted.) If its reasonably clear that the documents presented are fake, the employee should not even get through the I-9 process, thus avoiding the social security number being run through E-Verify.

E-Verify employers who ignore or dont even try to identify fake documents and thereby rely on E-Verify as a safety net are making a mistake. It is no safety net, and the fact you used E-Verify and the employee does not receive a TNC will provide no immunity from liability if it turns out that the documents presented by the employee, including the social security card turn out as fake as monopoly money. Obtaining some basic training on spotting fake documents will go a long way for E-Verify employers, now more than ever.

Also, employers must remember that the employee has a choice of what documents to present. Requiring an employee to present specific document to avoid a TNC likely will be considered document abuse. As we have discussed in prior posts, the Office of Special Counsel receives statistical analysis from E-Verify regarding the types of documents presented by employees and initiates enforecement actions when they find patterns that suggest an employer is mandating a particular set of documents be presented for I-9 purposes.

The current government shutdown will affect several areas of immigration compliance for employers and individuals. While attempting to be comprehensive, the following post is by no means exhaustive of the shutdowns impact.

First, a quick guide of what we consider to be the most significant disruptions to employers and individuals:

The inability of individuals in obtaining replacement Social Security Cards.

ICE will continue to issue Subpoenas and Notices of Inspection to employers, but audit processing may be delayed.

Second, a more detailed list of the impact of the shutdown broken down by the various agencies of the US government that interface with employers in the Immigration arena.

US Department of Homeland Security

USCIS Immigration Benefits

As an agency funded by filing fees, USCIS will continue normal operations with regards to most of its adjudication operations during the shutdown. Any fee for service activities performed by USCIS will not be affected by the shutdown. This means that employers (and beneficiaries) may continue to file petitions for employment visas (temporary or permanent), adjustment of status applications, and other benefits like EADs and advanced parole petitions. Naturalization ceremonies however appear to have been cancelled. USCIS directs users to report to interviews and appointments as scheduled and to call 1-800-375-5283 with questions.

E-Verify

Given that E-Verify is a free service, it will be unavailable to users during the shutdown. This means that employers who want to: enroll in E-Verify, query new hires, view or take action on any case, add, delete or edit user IDs, reset passwords will have to wait until operations resume. As well, the E-Verify Customer Support and related services are closed. In its most recent alert, E-verify provides the following practical guidance:

The three-day-rule for new E-verify cases is suspended until further notice.

The timeframe for resolving TNC (FAN) will be extended. The days the government is shut down will not count towards the 8 day deadline.

Employers should NOT take any adverse action against an employee due to E-Verify interim cases status.

Customs and Border Protection

CBP will continue to operate, as its mandate is deemed an essential function of the US Government. Border security and customs procedures and processes at the various US land and sea ports of entry are expected to remain unchanged and will continue to accept applications for admissions. However, delays may be expected as CBP is giving a furlough to more than 10 percent of its staff.

US Department of State

At this moment, the Bureau of Consular affairs will continue operations through out its worldwide consular offices until current funding is runs out. Funding is only expected to last a few more days. Fox News Latino reported that after current funding is exhausted consular posts will focus solely on diplomatic services and emergency services for American citizens. Further, visa processing, except in emergency cases, will cease if the shutdown is prolonged. Employers should note that in previous shutdowns, business reasons have not qualified for emergency visa processing.

US Department of Justice

During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines.

Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, check here.

The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. The stay line is open (for emergency stay calls only), but all other telephone lines have been switched to closed status.

US Department of Labor

Most of the DOL agencies like Wage and Hour and Occupational Health and Safety, will completely close during the shutdown. Further in the Immigration arena, the DOL has announced that the Employment & Training Administration, which handles Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification will cease operations.

OFLC’s web site, last updated September 26, 2013, announced that OFLC will neither accept nor process any applications or related materials (such as audit responses) LCAs, Prevailing Wage Determinations, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online account.

This will result in delays and will likely prevent an an employers ability to file petitions with USCIS, or engage in recruitment efforts, when those petitions require an application approved by DOL. The current backlog of adjudications will likely grow during this time.

Social Security Administration

SSA personnel will continue to perform essential services like issuance of checks for beneficiaries. However, it will not accept applications for new or replacement Social Security cards or issue receipt notices for those that have lost or stolen cards. This may impact an employers ability to complete I-9 forms.

We will continue to update our readers as more information becomes available.

If you wondered why USCIS chose to include “optional” fields for phone numbers and email addresses of employees in the recently updated Form I-9, you do not have to guess any more.

USCIS plans to contact your employees. Yes, you heard it right. USCIS plans to contact employees (who provide their email address on their I-9 forms) if their respective E-Verify case results in a TNC (Tentative Non Confirmation). Presently, there is no plan for telephone communication, but that can change. As well, USCIS recently stated that it presently does not plan to copy employers on such e-mail notifications.

Initial Alert: Employees who provided an e-mail address when completing Section 1 of Form I-9 will receive a notification informing them of a TNC.

Reminder: Employees will receive a reminder that they have 8 federal working days to begin the process of resolving the TNC if they choose to contest it. It is our understanding that if the employee notifies the E-Verify system that it will contest the TNC but fails to contact the agencies to initiate the resolution process within 4 days of making such election, the system will prompt an e-mail reminder.

Post Determination Notification: Upon final verification, even when the results of the case confirm that the employee is authorized to work in the United States, the system will remind the employee to contact SSA or DHS, or avail itself of Self-Check in order to prevent future TNCs if he/she were to change employment.

In addition, the Initial Alert will contain a section on “Reporting Violations” that informs employees how and where to report employers for violations of E-Verify rules and discrimination or “unfair” treatment.

So, what can employers do?

Our clients have asked if it is permissible for an employer to direct the employee not to provide an e-mail address when completing form I-9. The answer is no. While the email and phone number fields in Section 1 of the Form I-9 are entirely optional to compete, the option still belongs to the employee. Therefore, employers may not direct employees not to provide such information. Arguably, it may be permissible to tell employees that providing an e-mail address is optional by referring them to the applicable instruction (Note that the I-9 form itself does NOT mention that the e-mail address or phone number is “optional”). The employer also may be able to inform employees that whatever e-mail address and phone numbers are provided must be provided to the government.

In addition to not being able to tell employees NOT to provide an e-mail address, an employer cannot force an employee to provide an e-mail address. If the employer is not familiar with the I-9 instructions, it could easily ask an employee to complete the e-mail and phone number fields on the I-9 in the interest of making sure the I-9 is fully completed.

USCIS also advised that an employer may not fail to provide the employee’s e-mail address if the employee opted to provide it in the I-9. In other words, if the employee chooses to provide it on the I-9, the employer must provide it during the E-Verify process.

The employee may also choose what email address they will provide, including a company e-mail address. While employers may have a policy that prohibits the use of company email for personal purposes, communication related to a TNC arguably is a legitimate business purpose, thereby allowing employees to provide such if they so choose.

Finally, if your company is currently utilizing an electronic I-9 system to complete the forms and submit the cases to E-Verify, you should ensure that your vendor has updated the form and is currently aware of this issue.

Theres news this week that a bipartisan group of senators have unveiled a statement of principles for immigration reform, which in part proposes the creation of an effective employment verification system that prevents identity theft and ends the hiring of future unauthorized workers. Further, President Obama and the White House have released a Fact Sheet containing similar principles, including craking down on employers who hire undocumented workers through:

mandatory, phased in electronic employment verification

creation of and required use of fraud-and tamper-resistant documents to prove employees authorization to work

increased penalties for employers who hire undocumented workers

protection for workers against retaliation for exercising their labor rights

I am generally not a fan of speculating. When it comes to football games, like the BCS College Football Championship or the upcoming Super Bowl, I dont enjoy commentary about who people think will win. Just play the game already! So, I generally do not like to speculate on how the law might change. Im more of a lets wait and see and then deal with it type of guy.

Neverthess, I cannot help myself from wondering what may be on the horizon for employers and worksite enforcement if comprehensive immigration reform occurs. For example,

Will all employers be required to use E-Verify? (In Alabama, that already is the law, but my guess is that there still is mass non-compliance and federal law and federal enforcement would change things quite a bit)

Will there be a new and improved electronic verification system?

Will increased enforcement and higher penalties apply only to employers who knowingly hire unauthorized workers, or will the employers who just make paperwork mistakes on I-9s also be impacted?

Will this news further delay the release of the new two-page I-9 form?

Will employers have to become experts in detecting fraudulent documents as opposed to just making good-faith determinations about their authenticity?

Regardless of whether reform occurs or what it will ultimately entail, I believe the one thing we know for sure is government worksite enforcement is not going to let down, and if anything will increase. So, employers should continue to make immigration compliance a priority and stay tuned for more changes and perhaps challenges.

Alabama Employers should not be surprised if the next time they enter the E-Verify portal they see some changes. The United States Citizenship and Immigration Services (USCIS) released its latest round of E-Verify enhancements, on September 16, 2012, which will go into effect immediately for all users of the E-Verify web interface. Unlike the previous June 2011 update, these changes are fairly subtle – which will be welcome news for all who are responsible for constantly updating internal manuals, training guides, and policies.

This latest E-Verify release only affects those organizations (or agents) that access E-Verify directly through a web browser. Employers using an electronic I-9 system or designated agents (which automatically sends I-9 information to the E-Verify system through a secure connection) will be unaffected by these changes today.

More Web Browsers Supported

This new release will allow users to access the E-Verify portal through the following browsers (in addition to Internet Explorer 6.0 and above):

Firefox (version 3.0 and above)

Chrome (version 7.0 and above)

Safari (version 4.0 and above)

Quick Audit Report Now Available

During the past two years, employers have seen a steady increase in E-Verify compliance initiatives – both at the state and federal levels. The USCIS Monitoring and Compliance unit and the Office of Special Counsel are also requesting with increased frequency detailed E-Verify reports when issues of potential E-Verify misuse (or discrimination) arise.

To facilitate such inquiries, the USCIS has added a new “Quick Audit Report” which will allow companies to generate an Excel spreadsheet of E-Verify case data (e.g, basic company and case identifiers and case resolution information) for a particular time period and state location. This report will allow Alabama Employers to monitor and track potential red flag items and patterns of misuse. I reccomend that E-Verify administrators familiarize themselves with this feature and incorporate its use into their compliance monitoring activities.

New Fields for Foreign Passport Number and Country of Issuance

Perhaps the most significant change (at least for those who deal with foreign national new hires) is a new set of fields that will automatically appear for “aliens authorized to work” who present a Foreign Passport with an attached I-94. Under this new enhancement, employers will now be required to enter the “country of issuance” and “foreign passport number” into the E-Verify case before they can move forward.

As many of you may not know, the U.S. Customs and Border Protection (CBP) is in the process of eliminating the paper I-94 Arrival/Departure record which is issued to certain foreign nationals upon entry to the U.S. In doing so, CBP is now taking up to 45 days to input the I-94 information into the DHS system. Since E-Verify relies upon that information to confirm work authorization, the agency has been warning that employers may experience an increase in Tentative Nonconfirmations (TNC). Providing the foreign passport number and country issuance may enable an employer to avoid the dreaded TNC altogether.

New Web-Based Tutorial for Corporate Administrators

With this enhancement, USCIS has added a new Web-based tutorial for Corporate Administrators (those who manage multiple E-Verify accounts) which replaces the live webinar training that was previously required.

New Manual for Corporate Administrators

The USCIS has also added a new E-Verify User Manual for Corporate Administrators, which you can download here.